Rod Dreher has a good post about the martyrdom of Kim Davis. He is concerned about the effect of her case on religious freedom in general. But he’s ignoring the central protection Kentucky itself has instituted to protect religious liberty.

Prof. Eugene Volokh has the best analysis of the actual law, and the Kentucky religious freedom protection statute seems very clear that the state would make a reasonable accommodation for Davis if she were interested in being reasonable. In fact, the religious freedom laws passed by both the state and federal governments in the last two decades, are weighted — sometimes unreasonably (in my view) — in favor of religious freedom. Despite my feelings, that is a policy choice elected officials have made, and it is the law.

Davis’ best argument is that she doesn’t want to have her name on state marriage certificates if they will be issued to same-sex couples, because the use of her name in those circumstances violates her religious beliefs. The statute only requires her beliefs to be sincere, not objectively reasonable or even consistent. Under the Kentucky law, if it is not unduly burdensome on the state to remove her name, she could continue to serve in her job. That would require either reconfiguring how Kentucky marriage certificates look and perhaps having to reprint all of them going forward, or perhaps somehow scratching her name (if not her office title) from them. These options may or may not be reasonable given the specifics of what processes are in place, which ones are required by state statute, etc.

Volokh says this is a “modest” request. That might be true, though “modest” might not be the word I’d use. If one elected official in one Kentucky county can bring lawful marriages in her jurisdiction to a virtual halt because of her religious beliefs, and demands that her view of religion be accommodated countywide, and possibly statewide depending on the statutory rules for marriage forms, that seems to me immodest in the extreme.

Davis’s case is extraordinary because she has insisted that her personal religious belief should govern, not just her own actions, but those of her entire office, including (in her view) all of the people who work for her.

Compare the extent of her preferences to those of Judge Vance Day in Oregon. Judge Day has announced that he will not perform same-sex marriages due to his religious beliefs. Unlike the office of a county clerk, the performance of marriages is entirely discretionary for a judge. In fact, Judge Day specifically told his staff that they should forward any requests for same-sex marriages to other judges who do not share his religious objections. Judge Day has at the very least made it clear that his religious objections are his own, and made an accommodation to the same-sex couples who might have approached his office to make sure that their rights are protected at the same time that his religious beliefs are respected.

Here is another example, one cited by Dreher that works in the opposite direction. Gavin Newsom, as mayor of San Francisco, announced in 2004 that he felt California’s law prohibiting same-sex marriage was unconstitutional, and that henceforth City Hall would be happy to provide marriage licenses to same-sex couples, which is did, to great joy. Dreher calls this “lawlessness,” and implies that those who supported Newsom are hypocrites if they oppose Davis.

Newsom went beyond his authority as mayor, but he was not, as a NYTimes editorial quoted by Dreher suggests, defying a court order. In fact, the California Attorney General challenged the mayor’s political grandstanding, and when the California Supreme Court ruled against Newsom, the marriages ended. Dreher’s comparison of Newsom to Davis would hold only if the mayor had truly disobeyed the court ruling and maybe gone to jail for that.

Moreover, while Newsom was indeed acting (or more accurately overacting) on a moral principle, it was one grounded in the civil law, not God’s. The prior year, the Massachusetts Supreme Court had ruled that the state constitution protected the rights of same-sex couples to get married. While Newsom was in grave error about his own authority, he also knew when the stunt was over.

Davis now has to make that same determination. She can be a martyr for as long as she likes. Kentucky officials can determine whether it makes sense to accommodate her religious beliefs and remove her name from marriage certificates. The question is whether she is going to be reasonable enough to accept the terms she, herself, offered.

46 Comments for “Being Reasonable”

Davis sounds very much like an office bully. It is one thing for her to argue that processing marriage paperwork violates her own religious beliefs, but when he bullies her fellow public employees into agreeing with her, well, I call it like I see ’em; bully.

When people want to talk about how to protect religious and LGBT civil right, I am all ears. However, much of what I hear is hardly reasonable.

Gene Volokh, whatever the merits of the rest of his analysis, is dead wrong that Davis is making a “modest” request, or as I would put it, a “reasonable accommodation”. I’ve commented in the previous thread, so I won’t repeat myself. She’s holding a county (and by extension, since she requires that Kentucky marriage license law be changed to suit her), an entire state, hostage to her “religious belief”.

I’ve been a lawyer for close to 45 years now. I can’t recall as blatant an example of willful, blatant, pig-headed contempt in the face of a legitimate court order. I’ve represented about a dozen clients in contempt hearings (and was once threatened with being put in contempt myself by none other than Judge Julius Hoffman at one point), so I don’t speak off the top of my head.

I don’t know what the future holds, but I don’t have any problem at all with her sitting in jail until she relents or resigns. She deserves to be in jail.

It would not be that hard to work out a reasonable compromise if only Ms Davis and company acknowledged that gay couples wanting marriage licenses have rights. They do not and will not. So how does one compromise with those who refuse to budge? That is the entire problem in dealing with the religious right. Taking her name off the licenses may well work, but the state legislature is under no obligation to change the law to accommodate her religious beliefs. I shudder to think the chaos that will ensue when everyone plays the religious card for every task they don’t like on the job. Now the courts have to decide which beliefs are “sincerely held” and which are not? What a mess.

Now the courts have to decide which beliefs are “sincerely held” and which are not? What a mess

Uh, yeah, that’s how the law has worked for quite some time now.

I don’t talk about this often: I once sought a religious accommodation at my job after my job put a certain change in place.

My employer’s equal opportunity office first told me that I would need a letter from my church verifying , you know that under my religion such and such was an actual issue. But I don’t go to church. I follow the beliefs but I don’t go to church, what’s often called “non-practicing.”

So you know what I had to do. I had to prove to my office that my beliefs were sincerely held. That was my burden of proof.

So how did you prove that your beliefs were “sincere” and not just something you were using to get out of doing a task you didn’t want to do?

If the sincerity of a belief is challenged, the courts look to objective evidence about whether you manifest evidence that you put the belief into action in other areas of your life.

The question came up during the Vietnam-era, in connection with CO status challenges, and, although the courts can’t go beyond looking at factual, objective evidence (and not into the belief itself).

The courts have, as far as I understand the cases, given broad latitude to the person asserting that the belief is sincere, just short of a line that “If a person says that a belief is sincere, then the belief is sincere.” The line seems to be drawn somewhere near clear, objective evidence of fraud, as in suddenly deciding you are a pacifist the day you get your draft notice, when the day before you were trumpeting “Kill a Commie for Christ!”

That’s a good thing, in my view, because it seems to me that the government/courts should not be in the business of determining what beliefs are sincere and what beliefs are not. Better to let a lot of charlatans through the sincerity sieve rather than catch up a person who is stupid and inconsistent, but sincere.

I still think Kim Davis is engaging in shameless self-promotion. It’s likely that at this point, she’s becoming afraid that she may have gotten in over her head (jail sucks), but she’s holding out for that multi-million-dollar publicity payoff. It probably hasn’t occurred to her, yet, that crackpot right-wingers, like most Americans, have the attention span of gnats. They’ll get bored with her eventually, and move on to the next fresh excitement.

I always appreciate the professional experience and articulate facility with which Tom Scharbach and several others are able to explain complex legal issues in terms that a simple old man like me can understand. But I don’t understand why Kim Davis’ religious beliefs should trump my religious beliefs. What legal nuances would allow the free exercise of her Dominionist Apostolic Christian liberty to block the free exercise of my High Church Episcopalian Christian liberty, which just happens to be compatible which the secular liberty guaranteed to me under the Constitution?

Because her religion is the right one and yours is not. I was raised around people like this. And then moved away and have had a hard time explaining to people in other parts of the country that in many areas Southern Baptists are the “mainstream” denomination and that many others consider them to be too liberal. Even as a Baptist I was taught that when the rapture happened the following Sunday all those Catholic and Methodist and Episcopal churches would be full because they weren’t really Christians. Now imagine someone well to the other side of that. That’s what you’re dealing with on the religious right. I don’t think most of the country has ever fully understood how extreme these religious groups really are and even now I don’t think the media fully explains them (because that would mean doing research and bothering to understand something before talking about it).

In short, yes they believe their religious beliefs trump yours. They always have. They always will. The question is, how do we live in a society with groups like this who do not respect the rights of others?

But I don’t understand why Kim Davis’ religious beliefs should trump my religious beliefs. What legal nuances would allow the free exercise of her Dominionist Apostolic Christian liberty to block the free exercise of my High Church Episcopalian Christian liberty, which just happens to be compatible which the secular liberty guaranteed to me under the Constitution?

Fine, Dale, you go sue her, then.

I’d still like to know why the Supreme Court thinks your religious beliefs trump everyone else’s, but the Supreme Court put on a black robe and said LAW. You are not religion anymore, you are LAW.

One religion does not trump another religion. But at different times, the free exercise of religion may trump the law, or the law may trump the free exercise of religion. It all has to do with what the state wants or needs to do.

Even though this country does not have an official religion and protects the freedom of religion, the fact of the matter is that our political and legal traditions and assumptions are shaped by culture. Thus, what is or is not a “legitimate state purpose” is shaped by religious assumptions. This is an inequality and a flaw. For many years our laws have been shaped by the near-universal religious assumption that intimate relations should only be between a man and a woman. Now we’ve come to realize we have to make room for another emerging cultural assumption that cannot be called either inferior nor superior: that intimate relations can be between two persons of the same sex.

It is impossible to treat all religions equally. It is only possible to treat them as equally as possible.

But I don’t understand why Kim Davis’ religious beliefs should trump my religious beliefs. What legal nuances would allow the free exercise of her Dominionist Apostolic Christian liberty to block the free exercise of my High Church Episcopalian Christian liberty, which just happens to be compatible which the secular liberty guaranteed to me under the Constitution?

An element of “reasonable accommodation” is that the accommodation is internal (that is, involves shifting of tasks/responsibilities/schedules within the organization) rather than external (that is, involves change/denial of services outside the organization). The idea is that the person with religious requirements (wearing a yamaka, wearing a beard, wearing a dress of a certain length) or religious prohibitions (raising a flag, working on Shabbat or on Sunday) is accommodated by making changes within the affected organization, but that the operations of the organization are performed seamlessly as far as those outside the organization are concerned.

The question of when an accommodation is “reasonable” involves a cost/benefit analysis for the organization (e.g. shifting work schedules to accommodate Jews with religious obligations on Yom Kippur or requiring Sally to raise the flag rather than Bill are pretty much costless to most organizations, so the accommodation is reasonable, but asking an organization to accommodate an Amish lineman whose religious beliefs kept him from doing the work of a lineman has a high cost to the organization, so the accommodation is not reasonable.)

If you look at the various cases cited by Gene Volokh (as well as the marriage office example I gave, in which the religious beliefs of a particular clerk are accommodated by assigning the objectionable task to another clerk), what you’ll see in common is that the organization’s services are not affected (or not enough to matter) and the accommodation has no impact on the organization’s customers (or so minimal an effect as to be insignificant).

Because the external effect of the accommodation is not affect (that is, there is no change/denial of services outside the organization), a “reasonable accommodation” does not set up a situation where the accommdated employee’s religious beliefs block the free exercise of the religious liberty of anyone outside the organization. If a same-sex couple applies for a marriage license from a county clerk’s office, and a clerk is on hand to process the application, no conflict is created by accommodating the religious beliefs of a clerk who does not believe that he/she can process/issue the license. In a perfect world, the same-sex couple wouldn’t even notice, and in the real world, where Clerk Sally might say “Let me get Bill to help you.” and call Bill over to process/issue the application, the same-sex couple might notice, but a delay of a minute while Bill comes over to stand in for Sally is so insignificant that no conflict between competing religious beliefs arises.

That’s the long way around of saying that “reasonable accommodation” should not — and almost never does — set up a confrontation between religious belief systems, or give preference to one system over another. An accommodation that does is neither “reasonable” nor (in my opinion) constitutional.

Now, to the case at hand. It is because the demands fail the “seamless services” principle that Kim Davis’s demands for religious accommodation are not, under any circumstances, a request for a “reasonable accommodation”.

Davis demands that her religious beliefs be accommodated by allowing her to shut down a core service of the office she heads until the State of Kentucky changes the marriage licensing laws/forms of the state to accommodate her demands. She insists that she (and she alone) can issue marriage licenses in her county, and that appears to contradict Kentucky law, which provides that “the signature of the county clerk or deputy clerk issuing the license” be affixed (Kentucky Revised Statutes 402.100(1)(c)). She demands that any/all couples seeking a marriage license in Rowan County go to another county to obtain a license until her demands are met, which runs afoul of 14th Amendment “equal protection” lines under Griffin vs. County School Board of Prince Edward County (1964) and its progeny.

Meeting her demands is the opposite of “seamless service” and “reasonable accommodation”.

Tom, you make some excellent points concerning external effects and “seamless service” to customers as touchstones of reasonable accommodation. So far, I think those are implied in the legal analysis of the RFRA cases, but I don’t think it’s this explicit — and it certainly could be.

The reason I think this is important is that it helps to balance the extremely touchy extremes of subjective religious beliefs. Those beliefs can, in fact, become quite intense and, as the RFRA and free exercise cases all acknowledge, involve inconsistent and even fully hypocritical understandings of religion’s demands. A fully articulated rule that makes it clear that a religious accommodation is reasonable only if it does not disrupt the operations of the organization, or in cases like Kentucky’s, unduly affect the rights of customer/citizens — and particularly those who must deal with a government monopoly — seems the most workable compromise.

I’ve learned enough from reading Prof. Volokh (and the conspirators) over the years to know I’d want time to think this through a lot more. But it definitely has some appeal as an approach to this problem, and the Kentucky case is a good test of it.

If you look at the various cases cited by Gene Volokh (as well as the marriage office example I gave, in which the religious beliefs of a particular clerk are accommodated by assigning the objectionable task to another clerk), what you’ll see in common is that the organization’s services are not affected (or not enough to matter) and the accommodation has no impact on the organization’s customers (or so minimal an effect as to be insignificant).

Having to hire someone new or spend time to rearrange schedules so that service is not affected on Saturdays is only “internal” insofar as those efforts are successful. If there is an interim period during which the employer misses a beat in providing the religious accommodation, that will affect external services to some degree. Not because of the accommodation, not because meeting the accommodation causes an undue burden, but because of the employer’s own incompetence in implementing a change.

Re: Dreher’s post: “You know what this thing reminds me of? The way Michael Brown, the “gentle giant” shot to death in Ferguson became a martyr for the cultural left and the #BlackLivesMatter movement.”

I had not considered that comparison. (Wait, I seem to remember considering it recently on something else. Oh well.) Well, now that I do I feel much relieved. The country has survived a racial divide. We can suffer a religious divide, too.

Kim Davis is the Michael Brown of the Religious Right. Don’t underestimate the political potency of that. You watch, this is not going to end well for religious liberty in America.

Well if the liberals want to repeal the Civil Rights Act they are free to try.

One thing that bears repeating in Volokh’s article is that “1. The rule requires judgments of degree.” Employers have lost cases for just saying there’s an undue burden so without considering it, without providing facts and figures, without even trying to make a judgment of degree.

“5. The rule rejects the “you don’t like the job requirements, so quit the job” argument.” is worth repeating, too. Which I did in my own letter to the editor, though not as elegantly.

“First, a technical but important legal point: Title VII expressly excludes elected officials. But Kentucky, like about 20 other states, has a state Religious Freedom Restoration Act (RFRA) statute that requires government agencies to exempt religious objectors from generally applicable laws, unless denying the exemption is the least restrictive means of serving a compelling government interest.”

Okay I did not know that. Good thing I cited the First Amendment, too.

“to deny an exemption, the government must show not just “undue hardship” but unavoidable material harm to a “compelling government interest.””

“Indeed, she says that she would be content with

Modifying the prescribed Kentucky marriage license form to remove the multiple references to Davis’ name, and thus to remove the personal nature of the authorization that Davis must provide on the current form.”

Multiple references to her name?

Hmm…

Davis’ best argument is that she doesn’t want to have her name on state marriage certificates if they will be issued to same-sex couples, because the use of her name in those circumstances violates her religious beliefs. . . . The question is whether she is going to be reasonable enough to accept the terms she, herself, offered.

Well, as I wrote yesterday and the day before, I changed my mind on this once it became apparent that the marriage licenses being issued Friday no longer bore her signature. To me that was enough.

But if all the licenses being issued without her signature still have her name there somewhere, then I want to see what the courts say about giving this reasonable accommodation. I still think she should have her office issue the licenses without her signature, though.

The idea Volokh implies that she may be forced to follow the law because of the technicality that she never sought a religious accommodation at the state level is mind-boggling. But I agree that the federal judge’s reasoning erred.

Houndtenor wrote: “The question is, how do we live in a society with groups like this who do not respect the rights of others?”

Well I suppose we could pray for an early rapture and find out. That assumes, of course, that the Catholics, Methodists, and Episcopalians will have a clear view of who got left behind back down on earth.

Jack Chick comics do seem to suggest that many Christian denominations are false, if not willingly spawns of satan.

I am not sure how much credibility or common ground these comics have with how the right wing, evangelicals Protestants see the world, but it does make “reasonable” religious exemptions all the more interedting.

If this article from Buzzfeed is accurate, it would appear that two of Ms Davis’ multiple marriages were invalid, since they were not signed by the then county clerk but rather signed (or initialed) just by a deputy clerk (Copies of the licenses at the bottom part of the article). Odd that she would have permitted such an error to have occurred then.

The forms, which provide for signature by either the Clerk or a Deputy Clerk (in compliance with Kentucky Revised Statutes 402.100(1)(c), which provides that “the signature of the county clerk or deputy clerk issuing the license” be affixed, are the nail that seals the coffin on Davis’s assertion that she, and she alone, can sign Rowan County marriage certificates.

If she has instituted the rule, then she is operating her office outside the law, and if not, she is lying.

If having her name and office typed on the license form is sufficient evidence that she approves of a same-sex marriage for which a license is issued, does having her name and office typed on the license form for a remarriage after divorce provide sufficient evidence that she approves of adultery?

Before you get trot down the blind alley of “How can she know?”, note the line in the application that identifies the status of an applicant as “Single, Widowed, Divorced or Annulled”. So let’s skip the irrelevancies. Clerk Davis knows when she is issuing a license to a divorced man or woman seeking to remarry, and issues the licenses.

So, again, let me ask you: If issuing a same-sex marriage license runs against her religious scruples because “God’s Authority” bans such marriages, why isn’t the same true of a marriage license for a remarriage after divorce? Is it, perhaps, that Jesus didn’t speak with “God’s Authority” when he said that remarriage after divorce as adultery? Or perhaps that Clerk Davis, like almost all Christians today, drop a big glob of WhiteOut™ over the “hard” teachings about their own behavior?

I don’t mean to be offensive, Jorge, but I am so tired of the bullshit coming out of conservative Christians on this case. It is soooo reminiscent of the bullshit I’ve been listening to since Anita Bryant put too much JesusJuice™ Vodka in her orange juice.

If having her name and office typed on the license form is sufficient evidence that she approves of a same-sex marriage for which a license is issued, does having her name and office typed on the license form for a remarriage after divorce provide sufficient evidence that she approves of adultery?

It’s already been established that she does not view it as a sin to offer marriage licenses to people who have been divorced.

I don’t know why you’re bringing this up and I don’t know you’re calling marriage after divorce adultery. It’s not relevant, it is not hypocritical in her mind, and there are reasonable rationales to withhold judgment on remarriage that do not apply directly to the the morality of gay marriage:

1) Domestic violence.

2) Being cheated on.

3) Being abandoned.

In short, cases in which the other party breaks the marriage.

4) Kim Davis’s own standard: This time I’ll get it right.

I don’t mean to be offensive, Jorge, but I am so tired of the bullshit coming out of conservative Christians on this case.

You know the expression “if you don’t like gay marriage, don’t get gay married?”

Well, if you don’t like the bullshit of conservative Christianity, don’t shit conservative Christian bullcrap.

The First Amendment expressly prohibits the establishment of any one religion over any other religion.

That means YOUR interpretation of the Bible is not relevant in a case about Ms. Davis’s religious beliefs. Only her interpretation is.

But for the record, your interpretation of the Bible is wrong, and for the reasons I mentioned.

According to Jesus himself, remarriage after divorce is adultery. Yes, her marriages ended due to adultery. Hers.

There is only one thing sadder than a fundamentalist, and that’s a liberal trying to imitate one.

According to the Bible itself–which, because the Bible represents the holy word of God, overrules any single comment the Bible attributes to Jesus–even God has been wrong. Even God has conceded before the arguments of mankind. How, then, could Jesus be right about everything.

God once decided to destroy all of mankind. But then, after he almost did so with the flood, decided he would not do so again. God once was about to destroy all in the cities of Sodom and Gomorrah, but after Moses intervened, he decided to save the few righteous people in them. And then there was the case when God did not concede before Job, who sought to argue his innocence before God. But then God rewarded Job, and scolded his naysayers.

Moreover, and this is something you fundamentally do not seem to understand about Christianity, the most important thing about Jesus is not what he preached. Lots of people preached in the name of God. Some, like Moses, even preached directly what God said to them–and by the way, one of the things that God said directly to Moses is that for a man to lie with a man as with a woman is an abomination, makes me REAL glad Moses stood up to him on the Sodom issue. The most important thing about Jesus is that he died, and then rose from the dead, demonstrating the truth of his ministry.

Which was, frankly, about things much more consequential and more radical than traditional family arrangments.

Therefore, if Ms. Davis argues that neither her marriage nor any other marriage impacted by divorce constitutes a mortal sin that is a matter of heaven and hell, it is more probable than not that she is correct.

btw, do not drag Betty Ford into this. Mrs Ford was by far the best First Lady of my lifetime. She was funny, down-to-earth yet classy, smart and spoke her mind. She was courageous, honest and frank, all traits virtually absent from everyone anywhere near politics today. In her post-White House life she was among the first to host fundraisers to help those with AIDS and to fund research into the then-new disease.

Again, I suspect that Davies is hoping that she would become a beloved celebrity (in the conservative Christian circles) and would be able to live comfortably via the lecture circuit, book deals and the like.

Her plan will probably hit a snag, because the Liberty Council is a bit ticked off with her.

Wandering off topic for a moment, Kerry Eleved has a very interesting op ed in the Advocate this morning, “Are GOP Donors the Key to Passing a Nondiscrimination Bill?, discussing the post-marriage-equality phase of the battle for equal treatment, and how Republicans can play a role in including sexual orientation in anti-discrimination laws in the red states.

I don’t know whether Eleved is right — it seems to me just as likely that historic Republican antipathy to anti-discrimination laws is as likely to carry the day as adding sexual orientation to existing anti-discrimination laws — but it seems to be the direction that the pro-equality donors in the Republican Party are headed. It seems to me that’s a good thing.

I don’t know why you’re bringing this up and I don’t know you’re calling marriage after divorce adultery. It’s not relevant, it is not hypocritical in her mind.

The question was directed at you, Jorge.

I fully acknowledge that conservative Christians of the Bible-thumping variety do not consider divorce adultery, no matter what Jesus had to say about it. In fact, given the divorce statistics (which show the highest divorce/remarriage rates in the country) I would suggest that it is fair to say that conservative Christians of the Bible-thumping variety not only approve of remarriage after divorce, but revel in it.

So let’s try it again, slightly altered to remove any implication that an outsider to the Christian faith might fairly conclude that a Christian who holds the Bible to be the literal, unerring and uchanging word of God would consider remarriage after divorce to constitute adultery, and neutralize the second half of the question to remove any reference to remarriage after divorce:

If a County Clerk’s name on a form (on the form solely because she holds the office) is sufficient evidence that she approves of a same-sex marriage, does that principle also hold true for other marriage licenses issued by the office, so that if a County Clerk’s name is on a form (on the form solely because she holds the office), her name on the form is sufficient evidence that she approves of the form of marriage for which the license is issued.

I bring it up because Clerk Davis is engaging in sophistry when she takes the position that all it takes is her name on a form (on the form solely because she holds the office) to give rise to a sufficient level of participation in the marriage to necessitate that we accommodate her “religious belief” by shutting down the entire marriage licensing operation of an entire county. It is an absurd proposition.

If a County Clerk’s name on a form (on the form solely because she holds the office) is sufficient evidence that she approves of a same-sex marriage, does that principle also hold true for other marriage licenses issued by the office, so that if a County Clerk’s name is on a form (on the form solely because she holds the office), her name on the form is sufficient evidence that she approves of the form of marriage for which the license is issued.

I would say Yes.

Logically one should leave open the possibility that it merely rules out the severity of a sin. That the dividing line could be anywhere between “Dead certainly a mortal sin” and “Dead certainly not a mortal sin”. But if you put the dividing line anywhere in the realm of uncertainty, and then act on it, you are by definition endorsing and approving an unjust order in the name of a greater cause of justice, so I think it evens out.

It is an absurd proposition.

In all seriousness, I find it highly alien to demand political success in a religious matter. I mean, okay, it wasn’t good of the Romans to feed the Christians to the lions, but the Christians didn’t ask for power over any Roman institutions, either. Why does she need to ask for that specific accomodation and not just waiving her signature?

But I’m willing to see her argument entertained just because I’ve had so many degrees, certificates, etc. that have had the signatures and typewritten names of “important people” that I take that kind of thing seriously. Maybe that ugly little form pales in comparison, but it’s still an official piece of paper that means something.

Of course, what it means is a legal judgment. Having Mom sign the form like what happened to her once means a lot–my mother once received an official letter in her sister’s handwriting. Absolutely. I’m not sure having Mom’s typewritten letters on the form means the same thing. But let her make that case.

I’m having a REAL hard time trying to wrap my head around how a civil matter in any way has to involve a discussion of “sin”.

If you’re all that worried about getting slimed by someone else’s “sin” however tangentially, then get thee to a nunnery or whatever cultish compound you need to… don’t expect obeisance from a pluralistic society that MORE than reasonably accommodates your belief system.

Davis is not signing the marriage license personally, she is signing the license as an agent of the state. Her signature condones nothing. It is ludicrous to suggest that acting as an agent of the state you are condoning any acceptance or approval. Only a fool would make such a leap.

Tom: If a County Clerk’s name on a form (on the form solely because she holds the office) is sufficient evidence that she approves of a same-sex marriage, does that principle also hold true for other marriage licenses issued by the office, so that if a County Clerk’s name is on a form (on the form solely because she holds the office), her name on the form is sufficient evidence that she approves of the form of marriage for which the license is issued.

Jorge:I would say Yes.

Okay. We’ve established that (in your view) merely having her name on the form is sufficient to deny the entire population of an entire county the ability to obtain a marriage license in the county under the guise of “reasonable accommodation”.

Next question.

What if Clerk Davis’s name is removed from the form, but she asserted that she could not allow the County Clerk’s office to issue marriage licenses because her name (“Kim Davis, Rowan County Clerk”) was on the door to the office?

Would that (in your view) be sufficient to deny the entire population of an entire county the ability to obtain a marriage license in the county under the guise of “reasonable accommodation”?

If your answer is (as I suspect it will be), “I would say Yes.”, then the next question is:

What if Clerk Davis’s name is removed from the form and the door to the office, but she asserted that she could not allow the County Clerk’s office to issue marriage licenses because her name (“Kim Davis, Rowan County Clerk”) is in the county’s directory of officials?

Would that (in your view) be sufficient to deny the entire population of an entire county the ability to obtain a marriage license in the county under the guise of “reasonable accommodation”?

What I am trying to point out to you is that there is a point where the connection between Clerk Davis and the issuance of the marriage license becomes so attenuated that it is absurd — and “absurd” is the right word — to argue that the accommodation is “reasonable”.

This has nothing to do with her religious beliefs. She could believe in the Flying Spaghetti Monster (and for many conservative Christians of the Bible-thumping variety, they might as well, given how far their religious beliefs stray from Biblical texts and the tenets of traditional Christianity) and the question would be the same question.

In all cases of accommodation, there is a balancing, as both David Link and I have pointed out. At some point, the harm done by the accommodation outweighs First Amendment concerns. At that point, the question is not whether Clerk Davis can hold the belief until she draws her last breath (she can), but whether she can continue to hold her government position.

I think that she crossed that line when she turned down Judge Bunning’s offer to purge the contempt if she would let other clerks (as is authorized by Kentucky law and as evidenced by the common practice of doing so, including in three of her marriages) sign the license. She is pushing for an accommodation that is way over the line of “reasonable”, and it doesn’t look like she is going to stop. She should, if she has any concern at all for the citizen of the county, resign. She’s acting like a spoiled two-year-old.

We’ll see how long he gets to keep his job and Davis stays out of jail.

I wouldn’t put much of anything past Clerk Davis and the Liberty Counsel at this point, but I would love to see the expression on Judge Bunning’s face when he learns, during his every-other-week status hearing on his release order to Clerk Davis, that she had fired a deputy clerk for complying with his order.

She and the Liberty Counsel can’t possibly be so stupid as to try a stunt like that, but it wouldn’t be out of character in this charade. Do they make cells these days where you can throw away the key?

Okay. We’ve established that (in your view) merely having her name on the form is sufficient to deny the entire population of an entire county the ability to obtain a marriage license in the county under the guise of “reasonable accommodation”.

That is an amazing leap of logic on your part.

The reasonable accommodation at issue does not impact whether or not marriage licenses should be issued to gay couples. It’s about what the marriage licenses should look like.

I consider the temporal issue to be unimportant. The judge has a right to issue an injunction or not to issue one. You consider it the only issue.

What if Clerk Davis’s name is removed from the form, but she asserted that she could not allow the County Clerk’s office to issue marriage licenses because her name (“Kim Davis, Rowan County Clerk”) was on the door to the office?

I would suggest that that request is insincere because she has never made it up to now.

But let’s say she had made the objection in the beginning. The solution is simple: pry off the nameplate and move her office into a closet. That takes all of 48 hours, even faster than what Ms. Davis is currently asking. That wouldn’t create an undue burden on the state, would it? Even if I were to agree with you that a temporary delay in the issuing of gay marriages is unacceptable–which I don’t–how can such a small time period compare to the commandment of the First Amendment that the government cannot infringe upon the free exercise of religion?

Tom: Okay. We’ve established that (in your view) merely having her name on the form is sufficient to deny the entire population of an entire county the ability to obtain a marriage license in the county under the guise of “reasonable accommodation”.

Jorge: That is an amazing leap of logic on your part. The reasonable accommodation at issue does not impact whether or not marriage licenses should be issued to gay couples. It’s about what the marriage licenses should look like.

You are aware, aren’t you, that Clerk Davis ordered her office to stop issuing any marriage licenses at all, to anyone, straight or gay/lesbian, and she told Judge Bunning that she would neither issue nor authorize any deputy clerk to issue a lisense, unless and until state law was changed to remove her name from the Marriage License/Certificate form? Her lawyers, the Liberty Counsel, argued that this was “reasonable” because Rowan County couples who wanted a license to marry could drive to the next county and get a license.

You don’t seem to understand the facts of this case, or the legal theories surrounding those facts. Or maybe you just don’t want to.

Jorge is just being Jorge — nonsensical & obtuse… and clearly doesn’t understand that the First Amendment has two sections — freedom of religion and the establishment clause. As with the “scholars” from the Liberty Counsel, the want to use the first as a cudgel, but remain silent on the second. Davis used her governmental authority to force (establish) her religious dogma on everyone else that sought county services.

As to Jorge’s dismissal of “temporal issues”…

Even if I were to agree with you that a temporary delay in the issuing of gay marriages is unacceptable–which I don’t–how can such a small time period compare to the commandment of the First Amendment that the government cannot infringe upon the free exercise of religion?

Temporary delay? That might have rung semi-true in places like Texas where the forms weren’t completely ready for about 18 hours after Obergefell was announced… but this clerk (and two others in KY) have denied lawful citizens of their right to a marriage license for more than two months! And that would have continued longer if her ass hadn’t been thrown in jail so the other deputy clerks could be allowed to do their lawful jobs.

Yeah, and if the couple seeking to be married cannot get to another country (class or work schedule or mobility problem), they are SOL.

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IGF CultureWatch is a blog that originated with the Independent Gay Forum, a group of writers and activists who focused on advancing gay and lesbian legal equality and social inclusion beyond ideological rigidity and leftwing orthodoxy. more